Sacramento Box & Lumber Co. v. Rosenberg Bros. & Co.

TYLER, P. J.

Action to recover the sum of $5,302.68 for certain box shooks alleged to have been sold and delivered by plaintiff to defendant. The complaint is in two counts, the first being for the reasonable value of the goods alleged to have been sold and delivered and the second setting forth an express contract to pay the sum as the purchase price.

Trial was had and the court found that plaintiff did not sell or deliver to defendant the merchandise in question and that it did not agree to pay for the same. It is here claimed as ground for reversal of the judgment that the findings of the trial court are not supported by the evidence. There

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is no merit in the contention as the record contains ample evidence to show that there was no contract, either express or implied, between the parties.

There is little dispute between the parties as to the principal facts established by the evidence. So much of it as supports the findings may be briefly summarized as follows: In May, 1928, defendant entered into an agreement with one Omer Denny, who was engaged in the business of dealing in and manufacturing box shook as White Pine Products Company, a corporation, by which the latter agreed to deliver to defendant Rosenberg Bros. & Company two million board feet of box shook at a price of $37.50 per thousand feet. In November of the same year all of this lumber, except about five carloads had been delivered and defendant was insisting that delivery be made of the balance. Not being in a position to perform the contract, Denny telephoned to Sacramento Box & Lumber Company, plaintiff herein, to ascertain if it would accept an order for three cars of box shook to help fill Denny’s contract with defendant. Terms were discussed and a price was agreed upon at $39 per thousand feet. The president of plaintiff corporation expressed a preference to bill the lumber direct to defendant as he was uncertain whether he desired to invoice the White Pine Products Company and accept that credit. Denny informed him that he thought this would be satisfactory, but he would have to confer with defendant to confirm such arrangement. Without consulting defendant in the premises, Denny concluded that the matter would be agreeable to it, and he telephoned plaintiff that the plan was satisfactory. Plaintiff never attempted to have defendant confirm this arrangement. Denny thereafter forwarded plaintiff a written order for two cars of shooks. This order was from White Pine Products Company to plaintiff and it directed the merchandise to be delivered and invoiced to defendant. Subsequently three ■ other carloads were ordered by Denny under the same directions. All five cars were at different times shipped by plaintiff. In each car, nailed on the inside of the door, was a manifest on the bill-head of plaintiff, Sacramento Box & Lumber Company, which stated that the merchandise was sold and shipped to Rosenberg Bros. & Company for its account. Plaintiff also mailed to defendant a duplicate copy of the manifest of each car,